An Interesting Article…but Not Why You Might Think.

ACLU sues mountain school, claims references to gender and sexuality should not have been eliminated from yearbook
Thanks to Cate Smith at the Education Law Association, for posting the link to this interesting article.  Apparently the ACLU has filed suit against a small school district in California, who (according to the lawsuit) rejected two quotes for senior yearbook pages because they were “politically divisive.”  Both were pro-LGBTQ quotes, with one student claiming that Harry Potter had taught her “no one deserves to live in a closet. What they don’t know can’t hurt them” (those who know me know I love a good Harry Potter reference!)
Now, this will be an interesting lawsuit to follow, in part to see if the court uses the Hazelwood test (the test for school-sponsored speech, which is often applied to school publications like newspapers and yearbooks), or the Tinker material and substantial disruption test (which is usually applied to pure student-speech cases).  But I can’t really speak to the merits of the case, because we don’t know the school’s side of what happened.  According to the article, “The district and school declined to comment on the case.”  And that was one of two things that struck me about this article.
Why did the school decline to comment?  Not because it doesn’t care about the lawsuit; I’m sure that school officials were dying to give their side of the story.  No, as a school lawyer of 25 years, I feel fairly confident that they didn’t comment because one of my California brethren told them that they couldn’t comment, under the Family Educational Rights and Privacy Act, or “FERPA” (20 U.S.C. § 1232g).  FERPA is a federal privacy law that generally prohibits school officials from releasing information from student educational records.
Now, you can argue about whether telling the school’s side of the dispute would actually violate FERPA or not, but I’m sure that’s why the school didn’t comment.  I’ve given the same advice myself to schools, many times.  And it struck me as I was reading the article that it is fundamentally unfair that a parent or a student can sue a school district, and make all sorts of allegations, and then a privacy law prevents the school from giving its side of the story.  The school may have had good reasons for rejecting the two quotes, or its motives may have actually violated the First Amendment — but we won’t know, at least now, because the school isn’t allowed to speak in its own defense.  Kinda ironic in a First Amendment free speech case, don’t you think?
My second thought was that while I am sure that the two students were disappointed in not getting to use their preferred quotes, did this really need to develop into a federal lawsuit that will in the end cost the tax payers of the school district a hundred thousand dollars in attorney’s fees, even if the school wins?   And before someone accuses me of minimizing the importance of the First Amendment and student speech, consider this:  what is the most likely outcome of this dispute?  Schools are not legally required to allow students to have “senior yearbook pages,” and if these quotes really were divisive (for whatever reason), the most likely response to hundreds of thousands of dollars in attorney’s fees will be to not have “senior yearbook pages” in the future, for anyone.  The result will be significantly less free speech, not more.
This is not hypothetical.  We are seeing a rising tide of lawsuits filed over what I will call “optional speech opportunities” for students, and the expense of them — win or lose — is likely to lead to fewer such opportunities for student speech, as schools reluctantly eliminate these forums.  I am not suggesting that students should not fight for their right to speak, but there has to be a better way to do so than to engage in costly and time-consuming litigation.
Maybe the students here did try something short of litigation, and it didn’t work.  We don’t know….because “The district and school declined to comment on the case.”